INDETERMINATELY‑SENTENCED PERSONS CONVICTED of NONVIOLENT OFFENSES
As stated above, indeterminately-sentenced persons convicted of nonviolent offenses became eligible for parole consideration under Proposition 57 as a result of the Second District Court of Appeal’s decision in In re Edwards.xxxi The majority of indeterminately-sentenced persons eligible for parole consideration under Proposition 57 are nonviolent third strikers. Like determinately-sentenced persons sentenced to nonviolent offenses who are eligible for parole consideration under Proposition 57, indeterminately-sentenced persons convicted of nonviolent offenses are eligible for parole consideration once they have served the full term of their primary offense.
Determining someone’s primary term is, however, more complicated for persons sentenced to a life term under the Three Strikes Law. This is because the person is not sentenced to the term prescribed by the code section that was violated. Rather, the person receives an alternative sentence of 25 years to life. For example, a person convicted of assault with a deadly weapon (other than a firearm) under Penal Code section 245(a)(1) would ordinarily be sentenced to a term of two, three, or four years. However, if it is the person’s third strike, the person receives an alternative sentence of 25 years to life. The person’s Abstract of Judgment issued by the court reflects only the 25-years-to-life sentence without reference to the term of two, three, or four years for the underlying offense.
As a reminder, Proposition 57 states that all persons convicted of a nonviolent offense are eligible for parole consideration once they serve the full term of their primary offense, which is defined as the longest term of imprisonment imposed by the court, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.xxxii
This provision was initially interpreted as excluding nonviolent third strikers because the only sentence imposed by the court for the underlying nonviolent offense is an alternative sentence of 25 years to life. The court in Edwards disagreed and held that indeterminately-sentenced persons convicted of nonviolent offenses are eligible for parole consideration under Proposition 57. The court further held that for purposes of determining the person’s primary offense under Proposition 57, CDCR must look to the aggravated term for the underlying nonviolent offense. In the example above, the aggravated term for a conviction under Penal Code section 245(a)(1) is four years. Thus, a person sentenced to a third strike for violating Penal Code section 245(a)(1) would be eligible for parole consideration under Proposition 57 after serving four years (assuming they had no other convictions for which they were sentenced to a longer term, excluding enhancements). In addition, persons required to register as a sex offender were initially excluded.
The CDCR implemented the Edwards decision via emergency regulations in December 2018.xxxiii Under the regulations, incarcerated persons are screened for eligibility and if eligible, an NPED is calculated, using the same process as though they were determinately-sentenced.xxxiv Once referred to the Board, however, they are scheduled for a full parole suitability hearing like other persons serving life terms; they are not reviewed using the same “paper review” process that is used for determinately-sentenced persons considered for parole under Proposition 57.xxxv
The parole hearing process for indeterminately-sentenced persons convicted of nonviolent offenses mirrors the Board’s parole hearing process for persons serving life-terms, youth offenders, and elderly parole with one exception: when a nonviolent indeterminately-sentenced person is referred to the Board for parole consideration under Proposition 57, the Board conducts a jurisdictional review to confirm the person is eligible for parole consideration under Proposition 57.xxxvi All other law and procedures governing parole suitability hearings apply. For more information about the parole suitability hearing process, please see Discretionary Parole in California, Report for the Committee on Revision on the Penal Code (November 2020).xxxvii
The Edwards decision resulted in about 2,600 indeterminately sentenced persons being immediately eligible for a parole hearing. Under the regulations, persons who were within five years of their initial parole hearing date and who had served at least 20 years were given priority; the Board was required to schedule them for a hearing by no later than December 2020.xxxviii All others who were immediately eligible for a hearing must be scheduled for a hearing by the end of 2021.xxxix
As of May 30, 2021, the Board has scheduled 1,898 parole hearings for indeterminately-sentenced persons convicted of nonviolent offenses since the Edwards decision was implemented. Of those hearings, 872 were held, resulting in 262 grants of parole and 610 denial. An additional 72 hearings resulted in a stipulation to unsuitability, and 955 were postponed, waived by the incarcerated person, continued, or cancelled. The remaining eligible persons will be scheduled for a hearing by the end of 2021, as required and persons whose hearings were initially postponed are automatically rescheduled for the next available calendar.
Lastly and as mentioned above, the California Supreme Court held in December 2020 that persons convicted of nonviolent offenses who are required to register as a sex offender are eligible for parole consideration (In re Gadlin).xl The Gadlin decision applies to indeterminately-sentenced persons as well. Emergency regulations implementing the Gadlin decision were promulgated in April 2021, and all persons who became eligible for parole consideration as a result of the Gadlin decision and who otherwise meet the eligibility requirements for parole consideration under Proposition 57 were referred to the Board by July 1, 2021 and must be scheduled for a hearing by no later than December 2022.xli It is estimated about 700 indeterminately-sentenced persons will need to be scheduled for a hearing by the end of 2022 as a result of the Gadlin decision.